At a crossroads: Repeat impaired drivers continue to slip through the system

Posted on Sep 27, 2017 at 8:45 a.m.

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Editor’s note: This is the second of two stories about drinking and driving.

There’s a difference between losing someone after a long illness and a death that occurs suddenly. Mark and Sue Riley learned that the hard way.“Your life changes, literally, in a minute — a second,” Sue said.The east metro couple got word in 2013 that their son, New Richmond resident David Riley, had been killed in a nighttime boating crash on the St. Croix River. He’d been a passenger. His parents later learned the boat’s driver was drunk.News of David’s death shattered the Rileys.“Our life will never be the same,” his father said.

RELATED:Chronic drunken drivers plague Minn., Wis. roads | Rural areas continue to see higher rates of impaired drivingMore than four years after the crash that killed David, the former harbormaster at a popular Afton, Minn., marina, the Rileys said their pain was compounded by a protracted legal process surrounding the boat’s driver, who eventually pleaded guilty to homicide by intoxicated use of a vehicle. The family held a front-row seat to a criminal justice system they said left them disillusioned and disgusted.“I’ll never call it the justice system again,” Mark Riley said.In spite of complaints from the Rileys and others about how drunken drivers exist within the criminal justice system, alcohol-related fatalities and injuries have plummeted in recent decades in Minnesota and Wisconsin.Officials agree they’ve made headway on reducing the frequency and impact of drunken driving. But when it comes to meting out justice, solutions vary by state. Wisconsin has moved toward enacting stiffer penalties for repeat offenders while Minnesota has turned its focus on rehabilitating offenders outside of prison.

Chief among the Rileys’ concerns is sentencing, in which Wisconsin judges have ultimate discretion and can override Department of Corrections recommendations, victims’ wishes and even plea agreements.In the family’s case, the negotiated plea agreement called for a year in jail. The judge sentenced Patrick Puhalla, who had previous drunken-driving convictions in Minnesota, to six months in jail on work release.“We felt like Dave’s life meant nothing,” Sue Riley said.While that judge, Buffalo-Pepin County Circuit Court Judge James Duvall, offered a lighter sentence, data suggests Wisconsin judges are more likely to imprison chronic and repeat drunken drivers than their Minnesota counterparts.According to the Minnesota Department of Corrections, 546 people were incarcerated in state prisons for DWI-related offenses as of last month.In Wisconsin, the number of inmates serving time in prison for impaired driving offenses is nearly four times higher, according to the state’s corrections department.A RiverTown Multimedia analysis of conviction data shows courts in Minnesota and Wisconsin found a combined 48,165 impaired drivers guilty last year, enough to overfill Target Field or Miller Park. Roughly one-third were repeat offenders, who continue to spark public outrage, leading to calls for harsher penalties and other solutions, such as expanded use of ignition interlock systems requiring an alcohol breath test before starting a vehicle.Minnesota lawmakers have tread cautiously in imposing harsher prison sentences following concerns of prison overcrowding.Others feel sentencing chronic offenders isn’t an effective path toward getting to the root of the problem."I think you'll find that people who have 10 or 15 DWIs, a majority of them have probably spent time in prison,” said David Bernstein, chairman of the Minnesota’s DWI Task Force, whose mission includes raising awareness about impaired driving. “They're back because their addiction was never addressed."

Chronic (4+) impaired driving convictions

Drunken driving courts

Janet Carlson knew she was dying but didn't know if she could stop drinking.More than five years ago, the Minnesota mother was charged with her first DWI. Within the span of two years, she racked up two more.The first judge she saw told her he doubted he’d ever see her again, she recalled. Not long after, she found herself in front of a Washington County judge facing the same offense after leaving a party in Woodbury.“I didn't know I was dealing with alcoholism,” Carlson said. “My problems were starting to pile up, but my life had been pretty normal up until that point."Carlson saw she had a problem but struggled to keep to her sobriety. Her first relapse ended with a third DWI.The first time was a fluke, she said; the second time, she was getting away from an abusive boyfriend. "The third time I was sitting there saying 'this is me,' and if this keeps up I'm going to die or I'm going to kill somebody," Carlson said.She enrolled in Hennepin County’s DWI court, one of 18 specialty courts in the state repeat offenders have the option to enter. But the process is rigorous and comes with steep conditions, including random drug and alcohol screenings, mandatory support meetings and regular check-ins with a judge for roughly 18 months.Aside from fines, fees and other penalties, the maximum penalty for a third DWI is a year in jail. For Carlson, her latest offense put her one step away from becoming a felon.Officials have touted successes the program has had in reducing the likelihood someone drives drunk again by about 70 percent and saves the state millions of dollars.Meanwhile, St. Croix County is planning to join 18 other Wisconsin counties with active OWI courts next year.

Counties without OWI courts often include offenders in drug courts, where officials say they’re often a poor fit. Judge Michael Waterman, who presides over the St. Croix County’s drug court, said it’s crafted mainly with methamphetamine addicts as the target group. This makes the system of sanctions, treatment and rewards out of whack with what works for OWI offenders, he said.“It’s almost like putting a square peg in a round hole,” said St. Croix County Circuit Court Judge Scott Needham.The judges said there’s little statewide data so far to quantify the program’s effectiveness, but they noted that two Wisconsin counties — Eau Claire and Milwaukee — have so-called evidence-based decision-making systems that have proven successful.

Stiffer penalties

Wisconsin remains the nation’s only state that doesn’t criminalize first drunken-driving offenses, a policy that's drawn fire from critics who say the lack of criminal punishment sends the wrong message.When a person is found guilty of drunken driving in Wisconsin, offenders receive a forfeiture and a fine the first time. Sometimes they’re not even arrested on the spot.Few argue the policy is out of step, but numerous obstacles suggest it’s unlikely to change.Needham said it’s possible light penalties for first-timers serves as a catalyst for repeat offenses. However, the director of Wisconsin’s state courts determined criminalizing first OWIs would require adding about a dozen more circuit-court judges to handle the extra caseloads, Needham said. As it stands, municipal courts sort out many first offenses.Waterman said there’s also a flipside to not criminalizing first offenses. Those OWIs aren’t subject to the same due process as criminal allegations, so they get through the system faster than they might otherwise by allowing offenders to plead guilty quickly and begin attending programming, the judge said.Waterman noted many Minnesota DWIs are plea-bargained down to reckless driving violations, which are also non-criminal.“You’re basically getting the same effect we have in Wisconsin,” he said.Seldom does that happen in Wisconsin, Needham said. In 23 years on the bench, he said he can count “on one hand” the number of OWI cases amended to a lesser offense in St. Croix County.Rep. Jim Ott, R-Mequon, has long sought tougher drunken-driving laws. He said he’d support a bill criminalizing first offenses but has softened his position over the years.The prospect of a criminal conviction sticking on a person’s record for a potentially youthful indiscretion can be troubling for lawmakers, Ott said.He floated the possibility of criminalizing first offenses with the condition of a “lookback period” wiping the offense after five years if a driver doesn’t re-offend.

Penalties vs. recidivism

Roughly one in seven Minnesota motorists has at least one DWI, according to the Department of Public Safety. Of those, 42 percent have a prior DWI in their lifetime. Courts throughout the state found 23,392 people guilty of impaired driving in 2016, with 1,839 convicted of their fourth or higher violation.A study by the National Highway Traffic Safety Administration highlights Minnesota as having the nation’s highest rate of recidivism for impaired driving.“Drinking and driving, even though there’s been a lot of strides, in so many ways feels like a culture,” Sue Riley said. “It’s still just out there.”Nearly half of Minnesota and Wisconsin counties saw increases or no change in the number of chronic drunk drivers with four or more offenses between 2015 and 2016, according to an analysis of conviction data.Needham said that if harsher penalties result in fewer drunken-driving offenses, there’s not yet a mountain of evidence to support it.“I’m not seeing that correlation,” said Needham, who serves as chief judge of Wisconsin’s 10th judicial district.Last year, Wisconsin lawmakers passed laws making fourth OWI convictions a felony.

The state saw more than 9,000 chronic OWI offenders in the past five years, conviction data shows. Minnesota courts convicted more than 10,000 over the same time period. Waterman speculates only a certain segment of the population responds to heightened penalties. Often people learn from their first mistake whether or not it’s criminalized, he said.Minnesota laws carve out a number of exceptions allowing judges to sentence differently on their own.“Each county, each judge, each city encounters its own issues with repeat offenders,” said Joe Van Thomme, a city prosecutor for Woodbury and other east metro cities. “Some counties are harder than others, some judges are harder than others.”Prosecutors aim to strike a balance for what repeat offenders need, including jail time, alcohol abuse treatment, monitoring or any mixture of those methods. Van Thomme said the various means to issue correction tends to be on an individual basis. Still, some people are not ready to give up drinking, making them poor candidates for treatment programs."There are defendants that I look at and say, 'I don't know what to do with you anymore,’” Van Thomme said.

Legislative fixes

Wisconsin Rep. Jim Ott introduced the 2016 bill that led to fourth OWI convictions becoming a felony. “The penalties are not high enough,” he said. “We have a ways to go.”A few bills he’s introduced are gaining traction in Madison. One would set a mandatory 18-month jail sentence for fifth and sixth drunken-driving convictions. Current laws only call for six months.Another bill would set a mandatory five-year minimum for offenders convicted in an alcohol-related road fatality.Ott acknowledges the bill adds $660,000 to the corrections department’s annual expense. He said he weighs that against the possibility an offender kills someone else.Another bill proposes a lifetime ban on offenders who reach four OWIs. The bill, proposed by Racine Republican Sen. Van Wanggaard, also bans drivers with at least two OWIs and two felony-level driving offenses.

“This will push people to realize that this is not a game anymore,” Wanggaard said of the bill, which is likely to see a Senate floor vote this fall.The bill provides a pathway back to licensure after 10 years but with heavy restrictions. Even then, drivers would be subject to alcohol monitoring, Wanggaard said. Most people simply won’t go for that, he said, and the license is basically gone for life.The bill also calls for jail time if those convicts are caught driving while revoked.Minnesota has also struggled with drivers continuing to drive in spite of a revoked license.“One of the unfortunate deficiencies of Minnesota’s system is there is a lot of honor code systems," said Bernstein of the Minnesota DWI Task Force.He points to a shortfall allowing convicted drunken drivers to continue driving despite having a revoked license: They simply drive illegally.That’s because driving on a revoked license is a payable offense, similar to a speeding or parking ticket. Some people don't pay it, Bernstein said. "Their citations sit out there in purgatory while they continue to drive illegally," he said.The task force asked the Legislature to up the penalty to a criminal offense when revocations stem from a DWI.Lawmakers were lukewarm on the idea, with some saying it amounted to punishing offenders twice for the same crime. The courts also worried it would strain the judicial system.“It just wasn't a priority,” Bernstein said.Minnesota Sen. Dan Schoen agrees there’s a strong need for consequences, especially for chronic offenders. But balancing punishments with the need to treat offenders with alcohol addictions is tricky, the St. Paul Park DFLer said. "You can penalize someone all you want, but if they're sick, they're sick,” said Schoen, who also is a police officer in nearby Cottage Grove. “They're going to get behind the wheel because they're not making clear decisions.”

Ignition interlocks

Believing a solution is in separating the drunk from the driver, some have pushed to create a barrier through expanded use of ignition interlock devices.Mothers Against Drunk Drivers (MADD) has pushed for policies requiring interlock devices for all DWI offenders and for longer durations. The device requires drivers blow into a mouthpiece before starting the vehicle and as they drive."Even people who want to get sober will have relapses,” Bernstein said. “There's not a ton that we can do to control alcohol intake, but what the ignition interlock does is prevent the driving." First-time offenders are required to install an interlock device only if they’re twice the legal limit. Minnesota judges can also require them for a person with three or more DWIs for up to six years depending on the number of offenses they have.In Wisconsin, the devices can be ordered for a year on first and second offenses if alcohol concentration is 0.15 or more. The interlock equipment — or a 24-hour sobriety program — is required for at least one year on third offenses.Some worry the costs are prohibitive for mandating the program for all convictions.Offenders bear the total cost of the devices, which can cost between $1,000 to $2,000 annually. Add the costs of fines, attorney’s fee, hiked up insurance costs, and it can quickly become out of reach for some people, Bernstein said.Officials also point to a lack of transportation options, especially in rural communities. Ride-sharing services like Uber and Lyft, for example, are not available in places like St. Croix or Pierce counties in Wisconsin, as well as areas in greater Minnesota and Wisconsin.Shoen said he believes revoking licenses for a long period of time, such as the Wisconsin proposal, could make it difficult for offenders to enter back into society.“I want these people to go to work and pay their taxes,” he said. “No one wakes up and says, ‘I'm going to get my 10th DUI and go to prison for four years.’"Ott, the Wisconsin Republican, is pushing for greater use of the ignition interlock device. The current law has a loophole, he said, that doesn’t require convicts install the device while they’re on suspended licenses.“The problem is, some people choose to drive before their license is reinstated,” Ott said.His bill would create a violation for certain offenders driving any vehicle without an interlock device during the duration of their probation.

A new life

The case involving their son’s death exposed Mark and Sue Riley to an aspect of licensing they’d never experienced.Some repeat offenders in Minnesota can be issued what’s called a B-card, which allows them to regain their driver’s license after a third or higher DWI offense. But there’s one caveat — they can’t drink or legally purchase alcohol.The Rileys learned the man later convicted in the fatal crash, Bayport resident Puhalla, had been issued a B-card prior to the 2013 incident.The state issued 1,803 cards last year, according to the Department of Public Safety. Violating the conditions are severe and include criminal charges, as well as proof that a person has abstained from drugs and alcohol for some time up to six years before their license is reinstated. B-card recipients aren’t under monitoring in order to abide their sobriety pledge. They only have to put it in writing.“There's a lot that needs to be changed,” said Lisa Alvarez, David Riley’s partner, who questioned how the state monitors repeat offenders on no-drink provisions.Just as victims like Alvarez and the Rileys adjust to a new way of life, so too do offenders like Janet Carlson. Sober since her last offense, she volunteers at DWI court a few days each week to lend support to others in a similar position as hers.The memory of her daughter picking her up from jail is still fresh. “Mom, I knew you wanted to be sober, I just didn’t know if you could,” Carlson recalls her telling her.She’s open about her past and is given the flexibility to work her schedule around days she volunteers at the court.“I get a front-row seat to miracles every day,” Carlson said.